Special Projects

Lugo v. Corona (2019) 35 Cal.App.5th 865

The trial court denies Wife’s request for a DVRO against Husband because there is a 3-year Criminal Protective Order (CPO) protecting Wife from Husband. On appeal, appellate court reverses, holding that CPOs and DVROs can coexist, so the existence of a CPO does do not prevent a court from issuing a DVRO.

Our pro bono partner Sidley Austin and Survivor Justice Center filed an appeal after the family court denied our clients request for a restraining order because she already had a criminal protective order (CPO).

This has been a reoccurring issue for our clients. In a criminal action, our clients are not a party and do not have standing, they are only a witness in the case. While they have victims’ rights, they have no control over the case. In fact, the Defendant can move to modify the order without notice to the victim.

Survivor Justice Center attorneys are well versed in explaining the reasons a survivor may still need an RO to the family law bench; the RO is renewable, the RO includes other remedies that are critical to safety and stability like custody and visitation orders, they are a party to the case and have a right to notice, among others.

We were excited to finally have the opportunity to file an appeal on this issue as it comes up time and again for survivors.

Sidley Austin led the appeal and oral argument, and Gibson Dunn and the California Women’s Law Center was the Amicus and argued the policy issues.
The Court of Appeal agreed: “it is clear that criminal and civil protective orders may coexist, and the issuance of one does not bar the other. The trial court therefore erred by summarily denying Lugo’s DVRO request on the basis that a criminal protective order was already in place…”.

Jaime G. v. H.L. (2018) 25 Cal.App.5th 794

Under California law there is a presumption against awarding any custody to a domestic abuser. This means the court must give the survivor sole legal and physical custody, unless the abuser shows the presumption has been overcome, or “rebutted.” When deciding whether the presumption has been rebutted, the court must consider 7-factors which are designed to help the trial court consider the effects of domestic violence and whether it will reoccur.

The presumption and rebuttal factors are found in California Family Code section 3044. The 7 rebuttal factors are: best interest of the child(ren), successful completion of a batterer’s intervention program, successful completion of alcohol or drug counseling – if appropriate, successful completion of a parenting class – if appropriate, whether the perpetrator is on probation or parole and complying with the terms and conditions, whether the perpetrator is under a restraining order and has complied with the terms and conditions, and whether the perpetrator has committed any further acts of domestic violence.

Jaime G. v. H.L. reversed a trial court order rebutting the presumption and granting joint legal custody and majority physical custody to a domestic abuser. At trial, H.L. proved that she suffered years of physical and emotional abuse at the hands of her ex-husband, Jaime G. The trial court granted H.L. a two-year restraining order. But with respect to custody over the couple’s seven-year-old son, the trial court found Jaime G. to be the “more suitable parent” and awarded him joint custody and nearly 90% of the parenting time. To rebut the presumption, the court relied on the fact that the child went to school regularly when living with father who paid rent and worked full-time. On the other hand, the child had “a high absence rate” when living with mother who was unemployed, did not know who owned the home she lived in with her boyfriend, moved around a lot, and had no transportation. The trial court found it was in the child’s best interest to be with father the majority of the time.

This case is like many where the trial court looks only at the first of the seven rebuttal factors, “best interest of the child,” to rebut the presumption against granting custody to abusers. This case makes clear that the trial court cannot stop there – it must look at all 7 factors.

The opinion in Jaime G. establishes that a trial court cannot award any type of custody to a domestic abuser without first making findings in writing or on the record (orally) about each of the seven-factors. In coming to this decision, the Court of Appeal relied on the fact that the Legislature enacted the 7-factor test because too many trial courts were awarding custody to domestic abusers, and failing to take into account the effects of domestic violence and whether it would reoccur. Thus, § 3044 serves as a “mandatory checklist” that “require[s] family courts to give due weight to the issue of domestic violence.” The Court of Appeal held that a trial court must complete the § 3044 checklist on the record, even if misconduct by counsel requires the trial court to prematurely terminate a hearing.

This is a significant victory for domestic abuse survivors because it helps ensure that trial courts will fully consider past and future domestic abuse when making custody determinations.
https://fvaplaw.org/wp-content/uploads/2019/03/Case-Alert-Jaime-G.-v-H.L..pdf (Link Opens in New Tab)

Alex R. v. Superior Court, 2016, 248 Cal.App.4th 1

In Alex R, the Trial court denied Survivor Justice Center’s request to appoint guardian ad litem for our client unless he gave his father notice of the application for guardian ad litem. Survivor Justice Center appealed because this requirement would require providing notice, twice, which is already a huge barrier as Alex R is a minor whose parent lives in another country. The Court of Appeal reversed holding that the court erred in requiring parental notice before appointing guardian ad litem.

Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816

The opinion clarifies that controlling and coercive behavior, which can be emotionally injurious, can be “abuse” under the DVPA. Moreover, the length of time since the last act of abuse occurred has never been a basis to deny a DVRO.

This is the first case from the California Courts of Appeal to clarify that “acts of isolation[and] control” constitute “abuse” under the Domestic Violence Prevention Act (“DVPA”). (Fam. Code, § 6200 et. seq.) Moreover, the opinion clarifies that a showing of future abuse is not required to issue a protective order, and that a domestic violence victim does not lose her right to a restraining order simply because six months have passed since the last act of physical abuse.